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State v. Davis9/12/2003
owers, and about events that took place before the shooting. During cross-examination, the State asked Davis a number of things, including whether Davis: (1) had a problem with alcohol; (2) had been to alcohol or drug rehabilitation; (3) had trouble holding a job; (4) had a "ferocious temper"; (5) was supported by his girlfriend, Jessica; (6) paid child support; and (7) was Powers' source for cocaine. The defense objected to all these questions, but only the objection to the child support question was sustained.
. According to the State, most of the questions were appropriate as bearing on the credibility of Davis' professed concern for his family. The State further claims that even if questions about alcoholism were improper, they did not deprive Davis of a fair trial.
. Under Ohio law, cross-examination is allowed on "all relevant matters and matters affecting credibility." State v. Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4.
. Cross-examination is also "available for all matters pertinent to the case that the party calling the witness would have been entitled or required to raise." Id. at 481.
. After reviewing the record, we conclude that questions about Davis' work history and the fact that he was supported by his girlfriend were relevant to rebut his claim that he was concerned over his family's welfare and safety. Likewise, the question about child support , although not allowed, could have been relevant to the jury's assessment of the credibility of this claim. See Smith, 97 Ohio St.3d 367, 376-77.
. Questions about alcohol problems and rehabilitation were not relevant, for the reasons mentioned earlier. In addition, questions about Davis' "ferocious" temper, and about the fact that Davis' former girlfriend and mother of some of his children did not want him to know her location, were inappropriate, since the record did not contain any evidence about these points. The judge did sustain an objection to the question about Davis' former girlfriend, but defense counsel did not ask for a curative instruction.
. Evidence of Davis' temper problems or violent tendencies could have been relevant, since the State was attempting to prove that Davis shot Powers as the result of a disagreement. However, after asking the above questions, and implying that supporting evidence existed, the State made no attempt during rebuttal to present such evidence. "During a trial, an attorney may not present information that is not in evidence to a jury under the pretext of asking questions. * * * t the trial level it is highly improper for a lawyer to refer in colloquy, argument, or other context to factual matter beyond the scope of the evidence or the range of judicial notice." City of Sidney v. Walters (1997), 118 Ohio App.3d 825, 829.
. In analyzing if a defendant has been deprived of a fair trial, we decide "whether, absent the improper questions or remarks, the jury would have found the * * * [defendant] guilty." State v. Willard (2001), 144 Ohio App.3d 767, 773. After considering the record, we conclude that a jury would have found Davis guilty without the improper remarks. In the first place, the remarks were not egregious and were isolated instances in a trial that lasted several days. Moreover, the fact that the jury acquitted Davis of two counts of murder indicates that it was able to distinguish between degrees of culpability, and did not attach undue weight to evidence of Davis' "bad character."
. As an additional point, we note that the properly admitted evidence indicates that Davis gave inconsistent stories to the police after the incident. The physical evidence was also at odds with his story of a purely a
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